Alan Lyndell Wade v. State of Florida

Supreme Court of Florida
______________
No. SC13-1003
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ALAN LYNDELL WADE,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[December 11, 2014]
PER CURIAM.
Alan Lyndell Wade appeals an order of the circuit court denying his motion
to vacate his convictions and sentences—including two convictions for first-degree
murder and two sentences of death—filed under Florida Rule of Criminal
Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the
reasons expressed below, we affirm the postconviction court’s order.
I. BACKGROUND
Wade was convicted of two counts of first-degree murder, two counts of
kidnapping, and two counts of robbery in connection with the murders of Carol
and Reggie Sumner in July 2005. Wade v. State, 41 So. 3d 857, 862 (Fla. 2010).
Wade and his codefendants, Michael Jackson and Tiffany Cole, were tried
separately for the crimes. Bruce Nixon was also involved in the crimes but
pleaded guilty to two counts of second-degree murder and received concurrent
sentences of forty-five years in prison.
In the opinion addressing Wade’s direct appeal, this Court set out the facts
of the crimes:
At Wade’s trial, the evidence established the following. At the
time of the murders, Wade had known codefendant Jackson for at
least a year. In the summer of 2005, Wade had visited and partied
with Jackson and his girlfriend Cole in South Carolina. In June, Wade
arrived at his longtime friend Nixon’s home in Jacksonville, driving a
Mazda RX-8 that Cole had rented in South Carolina. Wade told
Nixon of a vague plan to rob someone but offered no specifics. The
next time Wade contacted Nixon was two evenings before the July 8
murders. Wade called and asked whether Nixon would like to join
him, Jackson, and Cole in digging a hole. Nixon agreed and purloined
four shovels from his neighborhood before his three codefendants
appeared at his home in the Mazda.
The foursome drove around before deciding on a good location
for the hole—a remote, wooded area located just across the state line
in Georgia. Leaving the car parked on the road, the foursome hiked
into the woods, where the three men dug a large, deep hole, while
Cole held a flashlight. When the group returned to the car, Wade
asked Jackson whether Nixon could join their robbery plan, and
Jackson agreed. The group then went to Wade’s house but left when
Wade’s mother ordered Jackson out of her home. She considered
Jackson a bad influence on her son.
Over the next two days, the four codefendants moved forward
with the plan to rob and kill the Sumners. Cole drove Nixon, Jackson,
and Wade by the Sumners’ Jacksonville home and called the Sumners
on her cell phone. Cole knew the victims from when she and they had
lived in South Carolina, and Jackson knew them through Cole. Both
Reggie and Carol Sumner were sixty-one and in extremely poor
health. The Sumners were chosen as victims because of their
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vulnerability and the belief that they had considerable financial
resources. The four codefendants planned to gain entry to the
Sumners’ house while the couple was at home and obtain information
regarding their financial accounts and the means to access those
accounts. Jackson said that he would kill the victims with a lethal
injection of medication. He promised his codefendants that they
would share the money obtained from the Sumners’ accounts and that
each would get about $50,000.
The codefendants made preparations to effect their plan.
Shortly after midnight on July 7, 2005, Jackson, Cole, and Wade went
to Wal-Mart and purchased disposable rubber gloves. Then, at about
8:30 on the evening of the murders, all four codefendants went to an
Office Depot, where Cole purchased duct tape and a large roll of
plastic wrap. Finally, they obtained a toy gun that shot plastic pellets.
At approximately 10 p.m. on July 8, 2005, Cole drove her three
codefendants in the Mazda to the Sumners’ home. She and Jackson
remained in the car after dropping Wade and Nixon near the home.
Wade had the duct tape in his waistband, and Nixon had the toy gun.
As Wade and Nixon approached the victims’ house, the pair donned
plastic gloves. When Carol Sumner opened the door, they asked to
use her phone, and she invited them in. Upon entering, Wade quickly
pulled out the phone line, while Nixon pointed the toy gun at the
couple. Wade grabbed Mr. Sumner around the neck and pushed him
down into a chair. They told the couple that they wanted bank and
credit cards. Mrs. Sumner began to cry and pleaded with Wade and
Nixon not to hurt her and her husband. Nixon took the Sumners into
the spare bedroom, where he used duct tape to secure their legs and
hands and to cover their mouths and eyes. Jackson then entered the
home after being signaled that the victims were secured, and he and
Wade began searching for financial information. A pile of mail and
financial statements and Reggie Sumner’s coin collection were taken
to the Mazda.
At Jackson’s direction, Wade and Nixon walked the Sumners
out to their own Lincoln Town Car and put the couple in its trunk.
According to plan, the two cars headed for the predug grave, making
only one stop to put gas in the Lincoln. After arriving near the
gravesite, Jackson opened the Lincoln’s trunk and began screaming
when he saw that the victims had worked their way out of the duct
tape. The couple lay with their eyes uncovered and hugging each
other in the trunk. Jackson ordered Nixon to bind them again. Then,
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when Wade was unable to back the Lincoln up to the edge of the
grave, Nixon did so. Jackson then sent Nixon to wait with Cole at the
road, where she had remained with the Mazda.
Later, Wade and Jackson drove the Lincoln up to the road
where Cole and Nixon waited. Jackson held a yellow legal pad and
reported that it contained the previously unknown personal
identification numbers (PINs) for the Sumners’ bank cards. Then,
with Wade and Nixon in the Lincoln and Jackson and Cole in the
Mazda, the foursome drove to Sanderson, Florida, where they
abandoned the Lincoln after wiping it clean of prints. They left the
four shovels in its trunk.
All four codefendants then returned to Jacksonville in the
Mazda. They went to an automated teller machine (ATM), where
Jackson withdrew money from one of the Sumners’ accounts, and
then the group went to their hotel. Subsequently, Wade and Cole
went to Wal-Mart, where they purchased gloves and bleach. They
also returned to the Sumners’ home and stole the computer. Nixon
stayed with his codefendants another day and then went home. Wade,
however, stayed with Cole and Jackson and traveled with them to
Charleston, South Carolina. There, Cole rented two hotel rooms—one
for her and Jackson and the other for Wade.
Carol Sumner[’s] daughter reported her inability to contact the
couple to the Jacksonville Sheriff’s Office on July 10, and the next
day the couple was reported missing and a “BOLO” issued for the
couple’s car. On July 12 the car was found, and the law enforcement
investigation of the Sumners’ financial accounts revealed an unusual
number of recent ATM withdrawals. Video from the ATMs revealed
Michael Jackson’s face and a silver Mazda in the background. Wade
called Nixon to inform him that the Lincoln had been found and told
Nixon to “be cool.” About this same time, Nixon went to a keg party.
There, while intoxicated, Nixon told a friend that he had buried
someone alive and showed his wallet containing about $200 in $20
bills.
Posing as Reggie Sumner, Jackson contacted Jacksonville law
enforcement officers by phone on July 12, and he assured the
homicide detective that he and his “wife” were fine. Cole, posing as
Carol Sumner, made the same assurances. Jackson also reported that
he was having trouble accessing the Sumners’ accounts and requested
the detective’s help. On July 14, Jackson, Cole, and Wade were
located and arrested at their South Carolina hotel, and their rooms
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were searched pursuant to warrants. Carol Sumner’s key ring
containing the keys to the Lincoln was found on the nightstand in
Wade’s room. In the room with Jackson and Cole, law enforcement
officers found a suitcase full of the Sumners’ financial records, bags
of recent purchases made on the Sumners’ accounts, receipts for those
purchases and for purchases made earlier in Jacksonville, and other
items, including the Sumners’ driver licenses, credit and bank cards,
and checks and check register. Notably, a check for $8,000 on the
Sumners’ account had been made payable to Alan Wade. Officers
also searched Cole’s car, a Chevy Lumina, and the Mazda, which had
not been returned to the rental agency but had been recovered by law
enforcement officers. In the Lumina, the officers found Reggie
Sumner’s coin collection, and in the Mazda, they found Wade’s
fingerprints on one of the victims’ magazines. They also found an
unused roll of plastic wrap with Cole’s and Jackson’s fingerprints on
it.
Nixon was arrested, and he took officers to the Georgia
gravesite. A roll of duct tape was found there, and on the morning of
July 15, law enforcement officers began excavation of the gravesite.
Both victims were found fully clothed and sitting in crouched
positions, with at least two feet of dirt over their heads. The medical
examiner testified that both Reggie and Carol were alive in the hole
before the dirt was shoveled on them. Their nostrils, mouths, throats,
esophagi, and tracheae contained fine sprays of dirt, indicating that the
dirt was inhaled. Both victims died of a combination of mechanical
asphyxiation, as the dirt compressed their chests and abdomens, and
smothering, as the dirt piled up around their heads and obstructed their
noses and mouths.
Wade, 41 So. 3d at 862-65 (footnote omitted).
After the penalty phase, the jury recommended a sentence of death for each
murder by a vote of eleven to one. The trial court conducted a Spencer v. State,
615 So. 2d 688 (Fla. 1993), hearing, and ultimately followed the jury’s
recommendation, imposing two sentences of death.
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The trial court found seven statutory aggravators applicable to each murder:
(1) Wade was previously convicted of a capital felony—the contemporaneous
murder of the other victim; (2) the murder was committed in the course of a
kidnapping; (3) the murder was especially heinous, atrocious, or cruel (HAC); (4)
the murder was cold, calculated, and premeditated; (5) the murder was committed
for financial gain; (6) the murder was committed to avoid arrest; and (7) the victim
was especially vulnerable due to age or disability. Wade, 41 So. 3d at 866. The
trial court did not assign a weight to each aggravating factor but concluded that
collectively, they far outweighed the mitigating circumstances. Id. at 867.
The trial court found three statutory mitigating factors to be applicable to
each murder: (1) the defendant was eighteen at the time of the crimes (great
weight); (2) the defendant was under the substantial domination of another person
(little weight); and (3) the defendant’s capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was substantially
impaired (some weight). Regarding the substantial domination mitigating factor,
the trial court explained that the factor was “not clearly established” because
“although Wade followed Jackson’s instructions, no direct evidence established
that Wade’s ‘personality was subdued by’ Jackson within the meaning of the
mitigator,” and Wade played an active role in the criminal scheme by soliciting
Nixon’s assistance. Id. at 866. Regarding the impaired capacity mitigating factor,
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the trial court gave the factor only some weight because the trial court concluded
that Wade was “not under the influence of drugs” at the time of the murders and
“knew exactly what he was doing.” Id.The trial court also found twenty nonstatutory mitigating factors to be
applicable to each murder: (1) Wade’s parents were divorced, and he grew up
without a father (little weight); (2) Wade was raised by an absentee mother (some
weight); (3) Wade was raised in a negative family setting (argumentative, little
weight); (4) Wade had difficulty in school (some weight); (5) Wade lacked
emotional maturity (argumentative, little weight); (6) Wade lacked parental
guidance (duplicative, some weight); (7) Wade had a history of substance abuse
(little weight); (8) Wade had a difficult childhood (duplicative, little weight); (9)
Wade had mental health issues in his youth (little weight); (10) Wade’s mother
threw him out of the house when he was sixteen years old (little weight); (11)
Wade is a model prisoner (some weight); (12) Wade desires to help others (some
weight); (13) Wade has changed for the better in prison (argumentative, some
weight); (14) Wade is not known as a violent person in jail and had only one
disciplinary review (duplicative, some weight); (15) Wade exhibits positive
personality traits in prison (duplicative, some weight); (16) Wade now has the
affection and support of his family (little weight); (17) Wade was well-behaved at
trial (duplicative, some weight); (18) Wade has demonstrated a potential for
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rehabilitation (duplicative, some weight); (19) Wade has helped others in prison
and could contribute to society if given a life sentence (duplicative, little weight);
and (20) Wade would be a model prisoner with a purposeful life (duplicative, little
weight). Id. at 866-67.
Wade raised seven issues on direct appeal. He argued that: (1) his death
sentences are disproportionate to codefendant Nixon’s sentences, and the trial court
erred in sentencing Wade to death without considering Nixon’s sentence; (2) the
prosecutor made statements during closing arguments that constituted fundamental
error; (3) the trial court erred in denying Wade’s motion for a mistrial; (4) the trial
court erred in denying the defense’s motion to preclude imposition of the death
penalty under Furman v. Georgia, 408 U.S. 238 (1972), and Wade was wrongly
forced to use peremptory challenges to remove jurors who strongly supported the
death penalty; (5) the trial court erred in denying the defense’s motion to preclude
the death penalty on the basis that Florida does not have uniform standards for
determining whether to seek the death penalty; (6) the trial court erred in
dismissing a potential juror for cause; and (7) Wade’s death sentences are illegal
under Roper v. Simmons, 543 U.S. 551 (2005). This Court concluded that each of
Wade’s claims was without merit, the evidence was sufficient to support the
murder convictions, and the death sentences were proportionate. Wade, 41 So. 3d
at 880.
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In 2011, Wade filed a motion for postconviction relief, raising twelve issues.
In claim 1, Wade argued that his trial counsel was ineffective during jury selection
by: (A) misstating the law governing the weighing process; (B) failing to preserve
for review the argument that two jurors should have been excused for cause; and
(C) failing to investigate and challenge jurors who were strongly in favor of the
death penalty.
In claim 2, Wade argued that trial counsel was ineffective in the guilt phase
because counsel failed to: (A) file a motion to suppress; (B) investigate cell phone
records; (C) object to improper comments by the prosecutor; (D) object to the tape
recording of Jackson and Cole pretending to be the Sumners; (E) object to the
admission of items seized from the hotel room shared by Jackson and Cole; (F)
object to the admission of photographs of Jackson using the victims’ bank card;
(G) object to Frieda Ganey’s testimony and the inconsistent statement admitted
through Detective Mark Gupton; (H) object to hearsay introduced through several
law enforcement officers; (I) object to United States Marshal David Alred’s
testimony; (J) object to testimony by Janet Jackson; (K) make a proper argument
for a judgment of acquittal; (L) argue the issues of venue and jurisdiction; (M)
object to the State’s method of introducing exhibits; (N) communicate with Wade,
adequately discuss the possibility of a plea bargain, and file a motion under Nelson
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v. State, 274 So. 2d 256 (Fla. 4th DCA 1973); and (O) hire independent forensic
experts.
In claim 3, Wade argued that trial counsel was ineffective in the penalty
phase because counsel: (A) failed to obtain Wade’s agreement to release a guilt
phase juror from service at the penalty phase; (B) failed to properly investigate and
present mitigating evidence; and (C) conceded the aggravating factors that the
murders were committed for pecuniary gain and that the murders were HAC.
In his remaining postconviction claims, Wade asserted that: (4) the State
violated Brady v. Maryland, 373 U.S. 83 (1963); (5) the State deliberately
introduced inadmissible evidence; (6) cumulative error deprived Wade of a fair
trial; (7) trial counsel was ineffective for not requesting a new penalty phase to
preserve the argument that separate juries should serve at the guilt and penalty
phases; (8) trial counsel was ineffective for not presenting evidence of Nixon’s
sentence; (9) trial counsel was ineffective for not renewing the objections based on
Ring v. Arizona, 536 U.S. 584 (2002); (10) trial counsel was ineffective for not
preserving the argument that the trial court erred by sentencing Wade without
consideration of Nixon’s sentence; (11) trial counsel was ineffective for not
adequately investigating Wade’s complaints and requesting a Nelson hearing; and
(12) Wade might be incompetent at the time of execution.
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In September 2012, the postconviction court conducted an evidentiary
hearing on claims two and three of Wade’s motions. In April 2013, the
postconviction court entered an order denying Wade’s rule 3.851 motion. See
State v. Wade, No. 16-2005-CF-10263-BXXX-MA (Fla. 4th Cir. Ct. Apr. 22,
2013) (Postconviction Order). Wade now appeals the postconviction court’s order.
Wade contends that the postconviction court erred in denying his claims that
trial counsel was ineffective: (1) during the guilt phase for failing to file a motion
to suppress, object to the tape recording of Jackson and Cole, object to the
evidence seized from the room occupied by Jackson and Cole, object to the
photographs of Jackson using the victims’ bank card, object to testimony by Ganey
and the admission of her prior inconsistent statement, and object to the hearsay and
opinion testimony introduced through several law enforcement officers; (2) during
the penalty phase for failing to investigate and present mitigating evidence and for
conceding the aggravating factors of committed for pecuniary gain and HAC; and
(3) during jury selection for misstating the law, failing to preserve for review two
denied for-cause challenges, and failing to investigate and challenge jurors who
were strongly in favor of the death penalty.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE DURING GUILT PHASE
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In order to prevail on a claim of ineffective assistance of counsel, a
defendant must show both that trial counsel’s performance was deficient and that
the deficient performance prejudiced the defendant so as to deprive him of a fair
trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). As to the first prong,
the defendant must establish that “counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. For the second prong, the reviewing court must determine
whether there is a reasonable probability that but for trial counsel’s deficiency, “the
result of the proceeding would have been different.” Id. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.This Court employs a mixed standard of review, deferring to the trial court’s
factual findings that are supported by competent, substantial evidence but
reviewing legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 771-72
(Fla. 2004). Here, the postconviction court did not err in denying Wade’s claims
of guilt phase ineffective assistance of counsel.
1. Motion to Suppress
Wade argues that his trial counsel was ineffective for failing to file a motion
to suppress and for failing to object at trial to the admission of evidence recovered
from room 302 of the hotel in North Charleston, South Carolina, where he,
Jackson, and Cole were arrested. Wade contends that his arrest was illegal and that
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because the law enforcement officers failed to disclose relevant information to the
judge who issued the search warrant, the warrant was fatally defective. The
postconviction court did not err in denying this claim.
Wade’s argument that his arrest was illegal is a red herring. The law
enforcement officers seized the evidence from room 302 during the search
conducted under the search warrant, not during the protective sweep that followed
Wade’s arrest. Furthermore, no information derived from Wade after his arrest
was included in the affidavit used to obtain the search warrant.
Next, the postconviction court correctly concluded that because trial counsel
could not have successfully challenged the search warrant, trial counsel did not
perform deficiently by not filing a motion to suppress or objecting to the admission
of the evidence. See Raleigh v. State, 932 So. 2d 1054, 1064 (Fla. 2006)
(“[D]efense counsel cannot be deemed deficient for failing to make a meritless
objection.”).
“In determining whether probable cause exists to justify a search, the trial
court must make a judgment, based on the totality of the circumstances, as to
whether from the information contained in the warrant there is a reasonable
probability that contraband will be found at a particular place and time.” Pagan v.
State, 830 So. 2d 792, 806 (Fla. 2002). In this case, the search warrant for rooms
302 and 312 was supported by information establishing a reasonable probability
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that contraband would be found in the rooms, and Wade has not established how
trial counsel could have demonstrated the warrant to be defective.
On July 14, 2005, Officer James Rowan swore to an affidavit setting out the
probable cause for the search. Officer Rowan began with some information about
the Sumners and the discovery of their car. He then stated:
Investigators further identified the victim’s bankcard from Heritage
Trust Federal Credit Union had been used since the couple had been
missing. Investigators obtained video of the individual using the
victim’s card. The video showed a white male subject using the card
to access the ATM to obtain money. The suspect was exiting a
vehicle, which appeared to be a silver 2005 Mazda RX-8. Tiffany
Cole rented a silver RX-8 from Triangle Rental Car in Charleston,
S.C. Tiffany Cole failed to return the vehicle per the rental contract.
A tracking device in the vehicle was checked by the rental company
and revealed the vehicle had been in the vicinity the victim’s vehicle
was located in. Contact was made with Tiffany Cole’s family at her
known address in Ladson, S[.]C. Cole’s brother took detectives to the
location to be searched to locate Cole. Upon locating Cole she was
found to be in the company of a white male matching the photographs
of the individual using the victim’s ATM card to make a cash
withdrawal from an ATM in Jacksonville, and Charleston. Based on
the information obtained by Det. Rowan, from other law enforcement
officers, there is reason to believe that Cole and her accomplices may
have caused harm to the victim[s] and have been using the victims[’]
financial resources without permission, and further that there may be
evidence of the aforementioned crimes under the control of Cole and
her accomplices within the locations to be searched.
Relying on Franks v. Delaware, 438 U.S. 154 (1978), Wade argues that if
the issuing judge had been informed of more of the details known to the law
enforcement officers, the judge would not have granted the warrant as to room 302.
In Franks, the United States Supreme Court concluded that a defendant could state
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a claim that a warrant was fatally defective due to misstatements in the supporting
affidavit if the defendant could proffer proof of his allegations that the affiant had
acted with “deliberate falsehood or . . . reckless disregard for the truth.” Id. at 171.
In Johnson v. State, 660 So. 2d 648 (Fla. 1995), this Court determined that the
reasoning of Franks applied to a claim that a warrant was defective as a result of
the omission of material information. This Court explained that in analyzing such
a claim, “the reviewing court must determine whether the omitted material, if
added to the affidavit, would have defeated probable cause” and if “the omission
resulted from intentional or reckless police conduct that amounts to deception.” Id.
at 656.
Here, Wade contends that if the issuing judge had been informed that one
man was staying alone in room 302 and that he was not the man seen in the
automated teller machine (ATM) surveillance video, the judge would have
concluded that there was not probable cause to search room 302. Wade ignores,
however, that Officer Rowan’s affidavit evinces that the law enforcement officers
believed that Cole had accomplices, not merely the assistance of the man
photographed at the ATM. Further, at trial, Officer Rowan testified that before
going to the hotel to arrest Wade, Jackson, and Cole, he was informed by Cole’s
brother that Cole had returned to South Carolina with “a couple of guys” and that
once at the hotel, Officer Rowan determined that Cole had rented two rooms.
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Given that when the warrant was requested, Officer Rowan knew that room 302
was rented by Cole and had cause to believe that Cole was traveling with two men,
the fact that Wade alone was staying in room 302 would not negate the probable
cause that existed to search the room.
2. Tape-Recorded Phone Conversation
Wade asserts that his trial counsel should have objected to the admission of a
tape recording of a phone call between Jackson and Cole, posing as the Sumners,
and Detective David Meacham of the Jacksonville Sheriff’s Office. The recording
was introduced into evidence through Detective Meacham. During the call,
Jackson and Cole stated that they were Reggie and Carol Sumner and that they
were in Delaware attending a family member’s funeral. They claimed that a friend
from the neighborhood called to tell them that their car had been stolen and
inquired about how to unfreeze the Sumners’ bank accounts. Wade argues that the
recording was irrelevant and hearsay.
The postconviction court concluded that the recording was not hearsay and
was relevant to establishing the crime and the identity of the perpetrators. Further,
the postconviction court concluded that Wade did not demonstrate deficiency
because: (1) he did not establish a legal basis for objecting to the recording; and (2)
trial counsel made a reasonable, strategic decision to not object to the evidence.
The postconviction court did not err.
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The State’s theory of prosecution was that Wade was guilty of robbery,
kidnapping, and first-degree murder as a result of his own actions and as a
principal to the actions of Jackson, Cole, and Nixon. A defendant is guilty as a
principal if he “aids, abets, counsels, hires, or otherwise procures such offense to
be committed, and such offense is committed or is attempted to be committed.” §
777.011, Fla. Stat. (2005). Accordingly, so long as the State offered evidence to
establish that Wade aided Jackson and Cole—which it did, for example, through
Nixon’s testimony—evidence of the actions of Jackson and Cole was relevant to
the prosecution of Wade. The recording thus was relevant because it was
probative of Jackson and Cole being responsible for the Sumners’ disappearance
and the group’s effort to access the Sumners’ bank accounts.
Moreover, the recording was not hearsay. The recording was not offered to
prove the truth of its content—that the Sumners were alive and well in Delaware—
but to establish that Jackson, Cole, and their accomplices were responsible for the
murders. See Jackson v. State, 25 So. 3d 518, 530 (Fla. 2009) (“[I]f the statement
is offered for some purpose other than its truth, the statement is not hearsay and is
generally admissible if relevant to a material issue in the case.” (quoting Penalver
v. State, 926 So. 2d 1118, 1132 (Fla. 2006))). Accordingly, Wade has not shown
that trial counsel had a basis for objecting to the admission of the recording.
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In addition, the postconviction court’s conclusion that trial counsel made a
reasonable, strategic decision to not object to the recording is also supported by the
record and this Court’s precedent. Trial counsel, therefore, was not ineffective.
See Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000) (“[S]trategic decisions
do not constitute ineffective assistance of counsel if alternative courses have been
considered and rejected and counsel’s decision was reasonable under the norms of
professional conduct.”).
At the evidentiary hearing, attorney Refik Eler, who was primarily
responsible for the guilt phase of Wade’s trial, testified that given the evidence
linking Wade to Jackson and Cole, he felt that the defense had to admit some
wrongdoing by Wade in order to maintain credibility with the jury. Eler stated that
he thought the best defense was to argue that Wade was “an accessory after the fact
to the theft,” who helped “get rid of and dispose of the fruits of the crime” and
hoped to be given the victims’ car and some money in exchange for cooperating
with Jackson and Cole. The defense would argue that Jackson and Cole “sucked
[Wade] into this” and that Wade did not participate directly in the robberies,
kidnappings, or murders.
Because Eler intended to argue that Jackson was the mastermind of the
crime and Wade’s role was minimal, Eler reasoned that “the more that Michael
Jackson’s name is mentioned and Tiffany Cole[’s] and the less that Alan Wade’s
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ame is mentioned the better.” Eler testified that his strategy was to let the State
“present any evidence about Michael Jackson and Tiffany Cole any time so a jury
could hear how—how much they were involved and how little Alan Wade was
involved.” As for the recorded phone conversation in which Jackson and Cole
impersonated the Sumners, Eler explained that he thought about objecting but
decided not to because he concluded that the evidence was “helpful to the strategy
of the defense blaming Michael Jackson and Tiffany Cole.”
Attorney Frank Tassone, who primarily handled Wade’s penalty phase,
testified that a “joint decision” was made to not object to evidence that implicated
Jackson and Cole. Tassone explained that
any information, piece of evidence, photograph, [or] conversation that
linked Tiffany Cole and Mr. Jackson together I probably and almost
assuredly would not have objected to knowing what I knew then
because I wanted the jury to believe as did Mr. Eler that Mr. Jackson,
and, secondly, Ms. Cole were the leaders of this and that Alan [Wade]
was essentially just a stupid young man who got caught up in it, so
that applies to the dealing with the car rental, things like that.
Tassone reiterated that he made a decision to not object to or attempt to suppress
“those specific items [or] a piece of evidence or testimony [that] would help heap
more guilt onto Mr. Jackson or Ms. Cole and keep it away from Mr. Wade.”
A concession of guilt to some of the prosecutor’s claims can be a “good trial
strategy and within defense counsel’s discretion in order to gain credibility and
acceptance of the jury.” Atwater v. State, 788 So. 2d 223, 230, 231 (Fla. 2001)
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(concluding that trial counsel acted reasonably in conceding Atwater’s guilt of
second-degree murder in an attempt to “maintain credibility with the jury”); see
also Jackson v. State, 127 So. 3d 447, 472-73 (Fla. 2013) (“[Counsel’s] decision to
not object reflects a trial strategy oriented toward admitting certain crimes (i.e.,
theft) and not others (i.e., murder and kidnapping), and otherwise presenting
Jackson in the best light, which included efforts to not appear as unnecessarily
obstructionistic. Without other support for this claim, Jackson has not
demonstrated that counsel’s performance was deficient under Strickland.”).
This Court also has concluded that it can be a reasonable strategy for defense
counsel to attempt to shift blame to a codefendant, even when doing so concedes
the defendant’s guilt. See Shere v. State, 742 So. 2d 215, 221 (Fla. 1999)
(concluding that trial counsel acted reasonably in admitting a statement in which
codefendant admitted firing fatal shot even though evidence was a “double-edged
sword”); Meeks v. State, 418 So. 2d 987, 988 (Fla. 1982) (“We also reject the
second contention that appellant’s trial counsel was deficient by allowing evidence
of the codefendant’s participation in the crime. It clearly appears that defense
counsel attempted to make the codefendant the more dominant participant.”).
Based on the foregoing, the postconviction court did not err in concluding
that trial counsel was not ineffective for failing to object to the admission of the
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recorded phone call. The evidence was admissible and consistent with trial
counsel’s reasonable theory of defense.
3. Evidence Seized from Room 312
Wade next argues that trial counsel should have objected to the introduction
into evidence of items seized from room 312 of the hotel on the basis that the
danger of unfair prejudice from that evidence substantially outweighed its
probative value. See § 90.403, Fla. Stat. (2007) (“Relevant evidence is
inadmissible if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of issues, misleading the jury, or needless presentation
of cumulative evidence.”). Wade contends that room 312 was occupied by
Jackson and Cole, not Wade, and that as a result, the incriminating items found in
that room—bank records taken from the Sumners’ home and an $8000 check
written against the Sumners’ account that was made out to Wade—misled the jury
about Wade’s culpability.
The postconviction court concluded that trial counsel was not ineffective for
not objecting. The postconviction court reasoned that the items seized from room
312 were relevant and that trial counsel made a reasonable, strategic decision not
to object. The postconviction court did not err.
The bank records and the check were not substantially more unfairly
prejudicial than probative. The bank records were probative of the fact that
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Jackson, Cole, and their accomplices were the people who robbed, kidnapped, and
murdered the Sumners. The fact that someone wrote a check against the Sumners’
account to Wade demonstrated an intent to give some of the proceeds of the crimes
to Wade. From this intention, the jury could infer that Wade assisted in
perpetrating the crimes. Moreover, Wade has not demonstrated that the evidence
was unfairly prejudicial. Wade’s argument that there was no evidence that he
knew about the check may reduce its probative value but does not render it
irrelevant or unfairly prejudicial.
In addition, the postconviction court correctly concluded that trial counsel
made a reasonable, strategic decision not to object to the evidence seized from
room 312 and thus trial counsel’s performance cannot be considered deficient.
Attorney Eler testified that he concluded that the check “worked well for the
strategy of [Wade] getting rid of things after the fact.” Eler reasoned that the
check could be seen as Wade’s payment and that a concession that Wade was
being paid for his role as an accessory would help the defense “stay credible with
the jury.”
4. Photographs of Jackson Using Victims’ Bank Card
Wade argues that the postconviction court erred in denying his claim that his
trial counsel was ineffective for failing to object to the admission of a series of still
photographs taken from ATM surveillance cameras. These photographs showed a
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young white male, later identified as Jackson, making withdrawals using the
victims’ bank card. In some of the photographs, a silver car, consistent with the
Mazda rented by Cole, is visible in the background. Wade argues that these
photographs could have been excluded on the basis that the danger of unfair
prejudice substantially outweighed their probative value. See § 90.403, Fla. Stat.
(2007). Again, the postconviction court correctly concluded that the photographs
were relevant and that trial counsel made a reasonable, strategic decision not to
object.
The photographs were probative of the fact that the group somehow—
presumably by force or by searching the Sumners’ home—acquired the Sumners’
personal identification numbers (PINs) and withdrew money from the Sumners’
bank account. As to any danger of confusion, the State never argued that Wade
was the person in the photographs. To the contrary, the State argued: “Michael
Jackson alone is the person accessing that [bank] card. . . . Michael Jackson very
well may be the mastermind of this group. . . . He was the one accessing it but
what we know, what we know is [Wade] was with them the whole time.”
Accordingly, Wade has not shown that upon a motion by trial counsel, the
photographs would have been excluded under section 90.403.
In addition, trial counsel cannot be deemed deficient because trial counsel
made a reasonable, strategic decision not to object to the photographs. Attorney
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Eler did not object to the ATM photographs because he concluded that “as long as
Michael Jackson’s picture is plastered up there in front of the jury and Alan
Wade’s picture wasn’t[,] that was better.”
5. Frieda Ganey’s Testimony
Wade argues that the postconviction court erred in denying his claim that his
trial counsel was ineffective for not objecting to the guilt phase testimony of Frieda
Ganey, Wade’s mother. Wade contends that the State elicited improper character
evidence and that in violation of Morton v. State, 689 So. 2d 259 (Fla. 1997),
receded from on other grounds in Rodriguez v. State, 753 So. 2d 29 (Fla. 2000),
the State called Ganey for the primary purpose of impeaching her. This claim is
without merit. Wade has not demonstrated that an objection to Ganey’s testimony
would have been sustained, and “defense counsel cannot be deemed deficient for
failing to make a meritless objection.” See Raleigh, 932 So. 2d at 1064.
During direct examination, Ganey testified that Wade and Nixon met when
they were around twelve or thirteen years old and were the “best of friends.” She
explained that Wade and Nixon were close until Wade was around sixteen years
old, when Wade’s family moved from Macclenny, Florida, to Jacksonville,
Florida. The State next asked Ganey about her son’s relationship with Jackson.
Ganey testified that when Wade first met Jackson, Wade was about sixteen and
was getting help for a drug problem. Wade’s improvement stopped once he
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became friends with Jackson. Ganey considered Jackson to be “very
manipulative” and she did not approve of him. Ganey testified that during the time
that Wade and Jackson were friends, Wade did not attend high school and did not
have a job. Eventually, in an effort to make him find employment, Ganey forced
Wade to move out of the family home.
Ganey testified that during the months of May through July 2005, she
generally saw Wade about once a week. Ganey was not aware of Wade having
any means of supporting himself during that time but knew that he took trips to
Myrtle Beach, South Carolina, with Jackson. Ganey further testified that when she
did see Wade during the months of June and July 2005, he usually was with
Jackson, and that on one occasion, in late June or early July, she saw Nixon with
Jackson. Ganey testified that Wade was at her apartment on the night of
Wednesday, July 6, 2005, but that she did not see him at her apartment again until
the morning of Saturday, July 9, 2005.
The State then asked Ganey if she remembered talking to Detective Mark
Gupton of the Jacksonville Sheriff’s Office after Wade was arrested. Ganey
explained that she remembered having a conversation with the detective, but
because she was in shock and hysterical at the time, she could not remember the
details of the conversation. Ganey testified that Wade never spoke to her about his
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involvement in the crimes and answered, “[n]o,” when asked if Wade told her that
Jackson was going to pay him $40,000 to help with the crimes.
The State then called Detective Gupton as its next witness. Detective
Gupton testified that he returned a phone call to Ganey and that he recorded their
conversation. The State played a nine-second portion of that recording, in which
Ganey stated: “I will tell you this because [Nixon] and [Wade] both told me this,
that [Jackson] promised them each $40,000 to help him.”
First, Ganey’s testimony about Wade’s drug use, truancy, and lack of
employment was not improper character evidence. Evidence of an uncharged,
prior crime or bad act “is admissible if it casts light on a material fact in issue other
than the defendant’s bad character or propensity.” Williams v. State, 621 So. 2d
413, 414 (Fla. 1993). Similarly, “[e]vidence of a person’s character or a trait of
character is inadmissible to prove action in conformity with it on a particular
occasion.” § 90.404(1), Fla. Stat. (2007). Ganey’s testimony about Wade’s
character was not, however, offered to prove that Wade had a propensity to commit
crimes. Ganey related details of Wade’s life in order to establish his relationship
with Jackson and to show that Wade needed money around the time of the crimes.
Ganey’s testimony about Wade’s truancy and drug use was also relevant to
establishing that despite having only recently turned eighteen years old, Wade was
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not living with his mother on July 8, 2005, the night the group robbed, kidnapped,
and murdered the Sumners.
Second, Ganey’s testimony was not improper under Morton. In Morton, this
Court clarified when a party may impeach its own witness, explaining:
[I]f a party knowingly calls a witness for the primary purpose of
introducing a prior statement which otherwise would be inadmissible,
impeachment should ordinarily be excluded. On the other hand, a
party may always impeach its witness if the witness gives
affirmatively harmful testimony. In a case where a witness gives both
favorable and unfavorable testimony, the party calling the witness
should usually be permitted to impeach the witness with a prior
inconsistent statement.
689 So. 2d at 264. This Court concluded that the witnesses in Morton’s case were
not called for the primary purpose of impeachment but that the cumulative effect of
the State’s impeachment of several witnesses may have made it difficult for the
jury to separate the substantive evidence from the impeachment evidence. Id.This Court applied the reasoning from Morton in Dennis v. State, 817 So. 2d
741, 761 (Fla. 2002). In that case, this Court determined that the record refuted the
defendant’s claim that a witness was called “in bad faith for the sole purpose of
impeaching him.” Id. This Court could “discern no evidence of bad faith” where
the witness “had relevant testimony to give regarding his awareness of Dennis’s
whereabouts on the night of the crime as well as the fact that [the victim] had left
Dennis and moved out of the apartment only a week prior to the murders.” Id.- 27 -
The testimony at issue in Wade’s case is similar to that in Dennis. Ganey’s
testimony was probative of Wade’s association with Jackson, Wade’s whereabouts
on July 8, 2005, Wade’s financial situation at the time of the crimes, and Nixon’s
credibility and connection to Jackson. Ganey’s testimony supported the State’s
case, in that it tended to establish that Wade played an active role in the criminal
enterprise by recruiting Nixon. Therefore, while the State likely hoped to
introduce the statement about $40,000, the record demonstrates that Ganey was not
called primarily for that purpose.
6. Hearsay and Opinion Evidence
In this appellate issue, Wade contends that the postconviction court erred in
denying his claim that trial counsel was ineffective for failing to object to hearsay
and improper opinions included in the testimonies of Detective Meacham of the
Jacksonville Sheriff’s Office, Officer Rowan of the North Charleston Police
Department, and David Alred of the United States Marshal’s Office. The
postconviction court did not err in denying this claim of ineffective assistance of
counsel.
a. Hearsay
Wade argues that trial counsel was ineffective for not objecting when the
State introduced into evidence a receipt from the Comfort Inn in Jacksonville
Beach, Florida. The receipt indicated that Cole paid cash for a room at the hotel on
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Tuesday, July 12, 2005, and rather than including merely computer-generated
content, the receipt contained an out-of-court statement, presumably by Cole, that
she, Jackson, and Wade were the registering guests. The receipt was offered to
prove the truth of that assertion—that the three codefendants were together on July
12, 2005. As a result, the receipt was hearsay. See Twilegar v. State, 42 So. 3d
177, 199 (Fla. 2010) (“[T]he receipts were admitted for the truth of the matters
asserted (the dates of the purchases, the amounts, the locations, and whether the
purchases were made in cash) and Deputy Holt was not qualified to, and did not
attempt to, attest to the fact that the receipts were records of regularly conducted
business activity for the respective businesses.”).
But while trial counsel could have objected to the admission of the hotel
receipt on hearsay grounds, trial counsel cannot be considered deficient. Trial
counsel made a reasonable, strategic decision not to object to the receipt. Trial
counsel’s defense theory was that Wade was an accessory after the fact who helped
Jackson and Cole access the Sumners’ accounts, hide evidence, and enjoy the fruits
of the criminal acts. Accordingly, a hotel receipt indicating that Wade was with
Jackson and Cole on July 12, 2005—several days after the robberies, kidnappings,
and murders—was not inconsistent with Wade’s defense.
Likewise, it was consistent with the defense’s theory to not object to
evidence about Cole’s brother’s statements to law enforcement officers. Officer
- 29 -
Rowan testified that Cole’s brother told him that “his sister had just come back
from Florida with a couple of guys,” named the hotel in which the group was
staying, and identified Cole’s car in the hotel parking lot. Officer Rowan testified
about these out-of-court statements to explain why he went to the Best Western to
look for Wade, Jackson, and Cole. Trial counsel could have objected to this
testimony on the basis that the “sequence of events leading to an investigation and
an arrest [was] not a material issue.” Keen v. State, 775 So. 2d 263, 274 (Fla.
2000). But again, such an objection would not have aided Wade’s defense. The
defense’s theory was that Wade was an accessory after the robberies, kidnappings,
and murders. As a result, evidence that Wade was traveling with Jackson and Cole
after July 8, 2005, was not harmful to the defense.
Next, Wade argues that trial counsel should have objected on the basis of
hearsay to Detective Meacham’s testimony about fracture-match testing attempted
on the duct tape found at the gravesite. Nixon testified that when preparing to
commit the crimes, he, Wade, Jackson, and Cole went to an Office Depot.
Detective Meacham, in turn, testified that Cole’s bank records and receipts showed
that she purchased duct tape from Office Depot on July 8, 2005. Detective
Meacham further testified that the Florida Department of Law Enforcement
(FDLE) performed fracture-match testing on the torn pieces of duct tape found at
the gravesite, but the testing revealed “[n]othing definitive.”
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Detective Meacham’s testimony about the results of the fracture-match
testing was hearsay. See State v. Belvin, 986 So. 2d 516, 525 (Fla. 2008)
(concluding that an affidavit prepared by a non-testifying technician constituted
testimonial hearsay for purposes of the Confrontation Clause). But even if trial
counsel could have successfully objected to Detective Meacham’s testimony,
Wade has not demonstrated that he was prejudiced. Detective Meacham did not
explain with what tape the FDLE technician attempted to match the gravesite tape,
and he stated that the results of the testing were inconclusive. As a result,
Detective Meacham’s testimony about the test results was essentially meaningless.
It neither implicated nor exculpated Wade.
b. Opinion Testimony
Wade argues that trial counsel should have objected when Detective
Meacham identified Wade as one of the individuals pictured in still photographs
and surveillance video from a Wal-Mart and in a surveillance video from a Georgia
gas station. Wade contends that if Detective Meacham had not been permitted to
identify Wade, the defense could have argued that the man seen at the Wal-Mart
and the gas station was Nixon or some other individual.
As the postconviction court concluded, the majority of the evidence
challenged by Wade was consistent with the defense’s strategy of arguing that
Wade was an accessory after the robberies, kidnappings, and murders, not a
- 31 -
participant in those crimes. Trial counsel made a reasonable, strategic decision to
not object to evidence that Wade was at a Wal-Mart with Jackson and Cole on July
9, 2005, or with them at a gas station in Georgia on July 12, 2005.
Regarding Detective Meacham’s identification of Wade in the still
photographs from the July 7, 2005, Wal-Mart surveillance video, even if an
objection to the identification would have been sustained, see, e.g., Proctor v.
State, 97 So. 3d 313, 315 (Fla. 5th DCA 2012) (“The jurors should have been
allowed to determine for themselves whether Proctor was the person shown in the
surveillance video.”), Wade has not shown that he was prejudiced under
Strickland. Wade has not argued any basis upon which trial counsel could have
prevented the admission of video or still photographs from that video. Thus,
regardless of any defense objection to Detective Meacham’s identification
testimony, the jury would have seen evidence that a man—consistent in
appearance with Wade—entered a Wal-Mart on July 7, 2005, just four minutes
after Jackson and Cole entered the store. Wade does not contend that his image
was somehow obscured in such a way that the jurors would not recognize him. In
this context, the allegedly improper testimony does not undermine confidence in
Wade’s convictions or sentences.
Next, Wade argues that Detective Meacham gave improper opinion
testimony regarding duct tape found at the gravesite. Detective Meacham was
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asked if the tape taken from the gravesite was “the same Office Depot duct tape
that was purchased, at least the same type of tape,” and he answered, “[y]es.” In
context, Detective Meacham’s testimony is best interpreted as expressing the
opinion that the duct tape found at the gravesite was the same “type of tape” as was
purchased from Office Depot, not as expressing an opinion that the duct tape was
from the particular roll purchased by Cole.
This opinion that the two tape samples were the same type of tape, is a
permissible lay opinion under section 90.701, Florida Statutes (2007). In Reynolds
v. State, 99 So. 3d 459, 479 (Fla. 2012), cert. denied, 133 S. Ct. 1633 (2013), this
Court concluded that a lay person could offer an opinion regarding whether
clothing appeared to be bleached because that observation “would be within the
knowledge of an average person who has washed and bleached clothing” and the
testimony at issue “was not a chemical analysis.” The observation that a piece of
tape is or is not duct tape is similarly within the knowledge of an average person.
Accordingly, trial counsel did not err by not objecting to Detective Meacham’s
testimony.
Also in this claim, Wade contends that trial counsel should have objected to
Officer Rowan’s testimony about the keys found in Wade’s hotel room. Wade
asserts that Officer Rowan opined that the keys belonged to the Sumners. The
record refutes this claim. When asked to describe “any property [found in room
- 33 -
302] that appeared to be relevant from the information you had to the abduction of
Reggie and Carol Sumner,” Officer Rowan explained why he suspected that the
keys were for the Sumners’ Lincoln, but he did not actually opine that they were.
Officer Rowan presented facts to the jury and allowed the jurors to reach their own
conclusion.
c. United States Marshal Alred’s Testimony
Finally, Wade argues that trial counsel should have objected to Marshal
Alred’s testimony on the basis of hearsay and improper opinion. Wade contends
that the postconviction court erred in determining that the cell phone data
interpreted by Marshal Alred was not hearsay and that Marshal Alred was qualified
as someone with particular expertise to use cell phone data to testify about the
location from which calls were placed. This Court’s precedent and the record
support the postconviction court’s denial of relief.
Marshal Alred testified that in July 2005, he assisted the Jacksonville
Sheriff’s Office in their search for the Sumners or, if the Sumners were no longer
alive, the individuals who kidnapped them. Marshal Alred explained that as part of
that investigation, he requested records from Nextel Telephone Company
regarding a cell phone that was registered to David Jackson, who was later
determined to be Michael Jackson using an alias. Based on that information,
Marshal Alred testified that on July 8, 2005, three calls were made to or from
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Jackson’s phone using side one of the San Marco tower, and then shortly after
midnight on July 9, 2005, a call was made from Jackson’s phone to the Heritage
Credit Union, using the Macclenny tower.
First, trial counsel did not act unreasonably by failing to raise a hearsay
objection to this testimony. As recognized by the Eleventh Circuit Court of
Appeals in United States v. Lamons, 532 F.3d 1251 (11th Cir. 2008), phone
company call lists are not out-of-court statements by a declarant. The Eleventh
Circuit reasoned:
We have no difficulty concluding that the statements in
question are the statements of machines, not statements of persons. . .
. [T]he relevant point is that no human intervened at the time the raw
billing data was “stated” by the machine—that is, recorded onto
Sprint’s data reels. The process by which the data was extracted from
the reels and placed onto compact CDs such as Exhibit 2 was
similarly fully automated. Finally, Burden did not alter the underlying
data on Exhibit 2 when she created a printout of calls made to
AirTran’s corporate telephone number on September 18, 2001
(Exhibit 3); she merely utilized Fonview in pre-programmed fashion
to read the encrypted data on Exhibit 2 and to format the data so as to
indicate the relevant portion.
Id. at 1263-64 (footnotes omitted); see also Bowe v. State, 785 So. 2d 531, 532
(Fla. 4th DCA 2001) (“[N]either the pager nor the caller I.D. screen, like a radar or
other similar machine able to give a readout, was a ‘person’ capable of being a
‘declarant’ within the definition of the hearsay rule.” (quoting § 90.801(1)(b), Fla.
Stat. (2000))). In light of these authorities, trial counsel did not err by not raising a
hearsay objection to the testimony about the content of the Nextel records.
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Second, trial counsel did not have a basis to object to Marshal Alred’s
qualifications to interpret the records. This Court has held that non-experts may
testify about cell phone records. See Gordon v. State, 863 So. 2d 1215, 1219 (Fla.
2003) (determining that a witness’s testimony about the content of phone records
and the locations of the calls “did not constitute expert testimony” requiring
“technical, or other specialized knowledge”).
B. INEFFECTIVE ASSISTANCE DURING THE PENALTY PHASE
1. Presentation of Mitigating Evidence
a. Mental Health Expert
Wade argues that his trial counsel was ineffective for not ensuring that Wade
received a reasonably competent mental health evaluation and for not calling a
mental health expert to testify generally about the adolescent brain. The
postconviction court concluded that trial counsel was not deficient, reasoning that
it was Wade’s own behavior that prevented trial counsel from presenting mental
health mitigation. The postconviction court also denied relief on the basis that
Wade did not prove that he was prejudiced by any alleged errors. The
postconviction court concluded that the defense expert presented at the evidentiary
hearing, Dr. Hyman Eisenstein, was not credible and that any expert testimony
about impulsiveness would not be consistent with the facts of the crimes. The
- 36 -
postconviction court did not err in denying relief. Wade proved neither deficiency
nor prejudice.
“[T]he inquiry regarding ineffective assistance and mitigation should focus
on whether trial counsel’s decision was reasonable at the time the decision was
made, without the benefit of hindsight.” Henry v. State, 937 So. 2d 563, 573 (Fla.
2006). In Spann v. State, 985 So. 2d 1059, 1070 (Fla. 2008), this Court concluded
that trial counsel could not be deemed ineffective for failing to obtain a complete
mental health evaluation of the defendant when the defendant “thwarted counsel’s
efforts to seek mental health mitigation.” In that case, trial counsel hired a mental
health expert who attempted to meet with Spann on two occasions. Spann was
cooperative at the first visit but then, on the second visit, refused to complete the
evaluation, despite the expert’s explanation of the importance of Spann’s
cooperation. Id.In this case, the record demonstrates that trial counsel made a reasonable
effort to have Wade evaluated by a mental health expert and that Wade refused to
cooperate. At the evidentiary hearing, attorney Tassone testified that he hired Dr.
Stephen I. Bloomfield to evaluate Wade for mental health mitigation and that Dr.
Bloomfield reported back that Wade was “not cooperative with him” and “did not
open up.” Tassone stated that he explained to Wade the importance of being
- 37 -
forthcoming with the psychologist, but Wade responded that “he had given the
information that he wanted to give.”
Dr. Bloomfield, a psychologist, testified that he was hired in June or July of
2006 to work on Wade’s case and that during a meeting at attorney Tassone’s
office, Dr. Bloomfield reviewed records pertaining to Wade. Dr. Bloomfield
described his first meeting with Wade as a normal first meeting, except that Wade
was focused on his dissatisfaction with his attorneys and his desire to see the
discovery in his case. According to Dr. Bloomfield, at the second meeting, Wade
“didn’t want to go forward with much because he was pretty insistent on getting
information from counsel, not from me.” Dr. Bloomfield testified that he was able
to get some background information from Wade at the third meeting, although
Wade was still reluctant. Wade told the doctor about when he was involuntarily
committed as a teenager, his use of cocaine and marijuana, his employment
history, and his general education diploma. Wade submitted to some competency
testing but would not participate in psychological testing. Dr. Bloomfield
explained that Wade was “cordial and pleasant but he wouldn’t do psychological
testing. I offered and I told him I thought it was important. . . . But he didn’t want
to do it.”
Dr. Bloomfield opined that Wade understood the purpose of the meetings
and made a knowing, intelligent, and voluntary decision not to participate in
- 38 -
developing mental health mitigation. Additionally, Dr. Bloomfield testified that he
reported to Tassone that because Wade was “reluctant” and unwilling to participate
in psychological testing, Dr. Bloomfield “didn’t have at that point anything that
[he] could testify to.”
Based on the foregoing, the postconviction court correctly concluded that
trial counsel cannot be considered deficient for failing to obtain a full mental health
evaluation. The lack of evaluation was a result of Wade’s refusal to submit to an
evaluation, not trial counsel’s lack of competency.
Wade also failed to establish that he was prejudiced by his counsel’s
inability to obtain a mental health evaluation of Wade.
First, Dr. Eisenstein did not testify that his postconviction evaluation of
Wade—which included neuropsychological testing and an interview—uncovered
any significant mental illness or dysfunction. Dr. Eisenstein concluded that Wade
is in the normal range of intelligence but that Wade’s “brain does not process
information as quickly as he should be able to do.” Dr. Eisenstein explained that
while Wade’s score on the perceptional subtest of the Wechsler Adult Intelligence
Scale-Fourth Edition (WAIS-IV) was in the high average range, Wade’s score on
the verbal subtest was only in the average range. Similarly, there was a
discrepancy between Wade’s visual learning, which was in the high normal range,
and his verbal learning, which was in the borderline range on the Wechsler
- 39 -
Memory Scale. A third test revealed that Wade has trouble with brain variability,
meaning he has difficulty focusing and regulating his impulses.
Dr. Eisenstein testified that these discrepancies in Wade’s brain functioning
are consistent with a diagnosis of brain damage but do not for certain indicate brain
damage. Dr. Eisenstein also explained that the discrepancies could be a result of
the cumulative effect of Wade’s drug use and oxygen deprivation from playing a
game where Wade and his friends would choke each other to unconsciousness or
that those incidents could have “exacerbated an underlying condition.”
Despite Dr. Eisenstein’s opinion that Wade may have brain damage, Wade
did not introduce any evidence of a PET or other brain scan that could have
confirmed the suspicion of brain damage. Moreover, Dr. Eisenstein opined that
Wade “certainly has enough strengths and abilities that he could have been a
productive, law-abiding individual that could have been independent and very
happy and productive in society.”
Second, the record supports the postconviction court’s conclusion that Dr.
Eisenstein’s opinions about Wade’s mental and emotional state at the time of the
crimes were not credible. Dr. Eisenstein opined that at the time of the crimes,
Wade was experiencing stress from brain impairment, longstanding attention
deficit disorder, academic failure, feelings of abandonment, lack of stability,
depression, and drug use, which cumulatively established the statutory mitigating
- 40 -
circumstances that Wade was suffering from extreme mental or emotional distress
and that his capacity to conform his conduct to the requirements of the law was
substantially impaired. In addition, Dr. Eisenstein testified that he thought the
statutory mitigating factor of substantial domination was applicable. Dr.
Eisenstein concluded that due to the lack of a father figure in Wade’s life and his
impulsiveness, Wade was “extremely vulnerable” to being dominated by Jackson.
Despite giving these opinions about Wade’s mental and emotional state at
the time of the crimes, Dr. Eisenstein did not offer any explanation of why the
long-term stressors identified above would have reached an extreme level at the
time of the robberies, kidnappings, and murders. Dr. Eisenstein also admitted on
cross-examination that he did not discuss the crimes with Wade and he did not
review the guilt phase testimony, the police reports related to the crimes, Wade’s
statements to law enforcement officers, or the evidence presented at the
codefendants’ trials. Dr. Eisenstein further testified that Wade never expressed to
him that Wade acted at the behest of Jackson, and Wade had committed crimes
before he ever met Jackson. Dr. Eisenstein’s lack of familiarity with the
circumstances of the crimes and his lack of specific reasoning for his opinions
support the postconviction court’s conclusion that Dr. Eisenstein’s testimony about
the statutory mitigating factors was not entitled to belief.
- 41 -
In the second part of this claim, Wade argues that even if trial counsel was
not deficient for failing to obtain a mental health expert’s evaluation of Wade, trial
counsel erred by not calling Dr. Bloomfield or a similar expert to testify generally
about young adult brain development. Because Wade turned eighteen shortly
before the crimes, Wade asserts that such testimony would have been compelling
mitigation. On this point, trial counsel made a reasonable, strategic decision to not
call Dr. Bloomfield or another expert.
At the evidentiary hearing, attorney Tassone explained that he knew at the
time of Wade’s trial that due to the incomplete development of their brains,
juveniles have difficulty with decision-making and impulsivity. Tassone testified
that he was concerned, however, that presenting such evidence would be more
harmful than helpful to Wade’s defense. Tassone reasoned that the State would
have “some pertinent questions maybe in cross[-examination] of that expert.” He
explained:
What I was concerned about was the issue of impulsivity on a crime
that spanned 24 or 36 or 48 hours because the planning of this, the act
itself wasn’t just a five-minute or one-hour event, so impulsivity to me
I didn’t—the last thing I needed was the [S]tate to beat [an expert]
over the head with what are you saying, that [Wade’s] brain wasn’t
developed and it was impulsive, then he had impulses for 36 or 48
hours or whatever the number of hours may be.
“Trial counsel is not deficient where he makes a reasonable strategic
decision to not present mental mitigation testimony during the penalty phase
- 42 -
because it could open the door to other damaging testimony.” Winkles v. State, 21
So. 3d 19, 26 (Fla. 2009) (quoting Griffin v. State, 866 So. 2d 1, 9 (Fla. 2003)). In
this case, expert testimony about impulsiveness and decision-making in juveniles
would have allowed the State to emphasize the protracted nature of the crimes
against the Sumners and point out how many opportunities Wade had to
disentangle himself from the plan instigated by Jackson and Cole.
Moreover, Dr. Eisenstein’s evidentiary hearing testimony did not call into
question the reasonableness of attorney Tassone’s decision not to call a mental
health expert to testify about the juvenile brain. On direct examination, Dr.
Eisenstein explained that due to the incomplete development of the executive
functioning portions of the brain, individuals at age eighteen generally have
difficulty inhibiting their responses, weighing options, and processing complex
information. On cross-examination, however, the State asked Dr. Eisenstein if he
was aware that Wade and his codefendants contemplated the robberies and
murders for days or weeks beforehand and that the Sumners’ grave was dug at
least forty-eight hours before it was used. Dr. Eisenstein answered, “[p]erhaps.”
When then asked if a young person’s “decision to act after all of that time has
passed is not a rash decision,” Dr. Eisenstein answered, “[i]n terms of time,
correct.” When invited by the defense to elaborate, Dr. Eisenstein testified:
[O]ne can’t equate just because time has passed that therefore the
judgment or the reasoning processes have—are in place to make a
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contemplated decision, a rational decision in terms of inhibiting a
response or regulating a response. Time is not—is not the same thing
equated here as a thinking process, so there’s no way to know that
thinking processes were rational and the ability to judge and to
process that information. That’s—you can’t equate the two.
As attorney Tassone anticipated, the cross-examination of Dr. Eisenstein
made the expert appear evasive. Moreover, Dr. Eisenstein’s attempt to testify
about the juvenile brain demonstrated that such testimony would have highlighted
the fact that—without the benefit of a psychological evaluation of Wade—a mental
health expert could not actually provide the jury with insight about Wade’s
thinking processes at the time of the crimes.
b. Intoxication at Time of Crimes
Wade argues that defense counsel was ineffective for not calling Carmen
Massanet and Nixon to testify about Wade’s drug and alcohol use at the time of the
crimes. The postconviction court concluded that Massanet would not have been a
helpful witness and Nixon’s testimony at the evidentiary hearing was not credible.
Again, the postconviction court did not err.
The record supports the trial court’s conclusion that Massanet would not
have been a helpful witness. In an October 16, 2007, letter from private
investigator Michael Hurst to attorney Eler, Hurst summarized his investigative
interview with Massanet. Hurst wrote that Massanet agreed that she had a
relationship with Jackson and with Wade. Massanet answered “yes” when asked if
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she heard of an incident in which Jackson pointed a gun at Wade. Massanet added,
however, that she heard this story from both Jackson and Wade “but doesn’t know
whether to believe it or not because they were friends and might have just told her
that.” According to Hurst, Massanet stated that she “never saw [Jackson] or
[Wade] with a gun;” “she didn’t want anything to do with either one of them . . .
and that they were both liars;” and she was “scared of [Jackson].” Wade’s
postconviction counsel was unable to secure Massanet’s attendance at the
evidentiary hearing.
Given this record, the postconviction court did not err in concluding that
Massanet would not be a helpful witness. There is no record support for Wade’s
allegation that Massanet had knowledge of Wade’s drug and alcohol use near the
time of the crimes. Moreover, while Massanet likely would have testified that she
was frightened of Jackson, she also had a negative opinion of Wade and expressed
doubt about whether Jackson had actually threatened Wade. “[A]n attorney’s
reasoned decision not to present evidence of dubious mitigating value does not
constitute ineffective assistance.” Gore v. State, 846 So. 2d 461, 470 (Fla. 2003).
Turning to Nixon, “[s]o long as its decisions are supported by competent,
substantial evidence, this Court will not substitute its judgment for that of the trial
court on questions of fact and, likewise, on the credibility of the witnesses and the
weight to be given to the evidence by the trial court.” Windom v. State, 886 So. 2d
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915, 921 (Fla. 2004) (quoting Porter v. State, 788 So. 2d 917, 923 (Fla. 2001)).
Here, the postconviction court’s conclusion that Nixon’s evidentiary hearing
testimony was not credible, is entitled to deference.
Nixon’s evidentiary hearing testimony contradicted his trial testimony. At
the evidentiary hearing, Nixon testified that during the two- or three-day period in
which the group robbed, kidnapped, and murdered the Sumners, Wade was
“messed up the whole time” on cocaine, alcohol, and “pills.” Nixon also stated
that the group was smoking, by which it appears that he meant marijuana, not
tobacco. In contrast, at Wade’s trial, the trial court asked Nixon a question drafted
by the jury: “Regarding drugs and or alcohol, were drugs and or alcohol involved
prior to the robbery or kidnapping?” Nixon answered: “We smoked weed and we
drank Lord Calvert.”
Wade’s argument for why this Court should reject the postconviction court’s
credibility determination is that no questions were posed to Nixon during Wade’s
trial that asked specifically about Wade’s drug use. While the intended subject of
the jury’s question was ambiguous, Wade ignores that Nixon’s answer was about
the group’s use of drugs and alcohol, not solely his own use. Nixon testified that
“[w]e smoked weed and we drank Lord Calvert.” (Emphasis added.) Nixon’s
testimonies were inconsistent, and thus, the record supports the postconviction
court’s conclusion that Nixon’s postconviction testimony was not entitled to belief.
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c. Other Mitigation Evidence
Wade asserts that the postconviction court erred in denying his claim that
trial counsel was ineffective for not investigating mitigation leads identified by the
defense’s mitigation specialist. Specifically, Wade contends that trial counsel
erred by failing to call penalty phase witnesses who could have presented evidence
that Wade: (1) once threatened to commit suicide; (2) suffered from depression,
low self-esteem, stagnated development, and head trauma; (3) suffered from
parental abandonment and neglect and had a dysfunctional family; (4) lacked a
male role model; (5) came from a family with a history of Asperger’s syndrome,
mental disorders, and drug use; and (6) had a history of drug and alcohol abuse and
was intoxicated at the time of the crimes.
Most of the potentially mitigating factors that Wade contends were
overlooked were explored at the penalty phase. Wade’s penalty phase was not one
in which trial counsel presented only a meager amount of mitigating evidence.
Rather, Wade’s trial counsel called Wade’s mother, Wade’s half-sister, a childhood
friend’s mother, the assistant principal of Wade’s middle school, Wade’s youth
pastor, and Nixon as penalty phase witnesses. Through these witness, trial counsel
gave the jury a detailed account of Wade’s life beginning from the time of his
parents’ divorce when Wade was around eight years old.
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Wade is correct that no evidence was presented to show that Wade may have
suffered a head trauma from playing a choking game; Wade’s mother may have
suffered from bipolar disorder; Wade’s father suffered from depression; two
members of Wade’s family were diagnosed with Asperger’s syndrome; Wade’s
half-brother was addicted to crack and heroin; and another brother suffered from a
suspected chemical imbalance. But these few pieces of noncumulative mitigating
evidence presented at the evidentiary hearing—even if considered in conjunction
with Dr. Eisenstein’s testimony that Wade might have brain damage—are not so
significant as to undermine confidence in Wade’s death sentences.
As for the possibility of a head trauma from the choking game, Nixon and
Wade’s childhood friend, Vanessa Wilkinson, each testified that they had played
the game with Wade on numerous occasions. Neither witness, however, expressed
that he or she experienced any known brain injury as a result of the game. In
addition, Dr. Eisenstein found no conclusive proof that Wade suffered from brain
damage and testified that although any oxygen deprivation hinders the normal
development of the brain, the choking game is “mild in terms of a spectrum head
injury.” Thus, Wade did not demonstrate that he suffers from brain damage that
could have been presented to the jury as a mitigating circumstance.
As for Wade’s family history, Wade has not demonstrated that at the time of
his trial, any of his family members had been diagnosed with Asperger’s
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syndrome. While neither witness mentioned Asperger’s syndrome during their
penalty phase testimony, Wade’s mother testified at the evidentiary hearing that
two members of the family—Wade’s brother and Wade’s niece—were recently
diagnosed with Asperger’s syndrome, and Wade’s half-sister similarly testified
about her young daughter’s diagnosis. Still, neither witness addressed whether
those diagnoses were made before or after Wade’s 2007 trial. “Trial counsel
cannot be ineffective for failing to present evidence that did not exist at the time of
trial.” Clark v. State, 35 So. 3d 880, 888 (Fla. 2010).
Trial counsel did have reason to know at the time of the trial that Wade’s
mother was suspected of being bipolar, Wade’s father was depressed, Wade’s half-
brother Robert had been addicted to crack and heroin, and that his brother Andrew
was thought to have a “chemical imbalance.” This information was included in a
report drafted by Shreya Mandal, who was hired by trial counsel as a mitigation
specialist. Trial counsel did not present evidence of the mental health history of
Wade’s family at the penalty phase.
Nevertheless, while defense counsel could have presented evidence about
the mental health of Wade’s relatives, Wade has not shown that this evidence
would have been material. At the penalty phase, the trial court and jury heard
evidence that Wade was raised by absentee parents—including a mother who
frequently kicked him out of the family home beginning at the age of fourteen.
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The jury was also informed that Wade was emotionally scarred by his father’s
absence, once threatened to commit suicide, and abused drugs and alcohol to the
extent that he once went to a rehabilitation center. Based on this evidence, the trial
court found and gave weight to the statutory mitigating factor that Wade’s capacity
was substantially impaired and several nonstatutory mitigating factors relating to
Wade’s difficult childhood, substance abuse, and mental health. See Wade, 41 So.
3d at 866. As a result, the previously unpresented evidence about the possibility of
brain damage or about the mental health of Wade’s family members would not
have proven a new mitigating factor but, at most, would have led to slightly more
weight being given to the mitigating factors that were considered by the jury and
found by the trial court.
This possibility that additional weight would have been given to the
mitigating factors does not undermine confidence in Wade’s death sentences.
Despite giving “great weight” to the factor of Wade’s age at the time of the
offense, id., and varying weight to numerous mitigating factors pertaining to
Wade’s background and mental status—both historically and at the time of the
crimes—the trial court concluded that the seven aggravating factors applicable to
each murder far outweighed the mitigating circumstances, id. at 867. Given this
overwhelming amount of aggravation, more information about Wade’s background
would not have tipped the scale in favor of life sentences.
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2. Concession of Aggravating Factors
a. Pecuniary Gain
Wade contends that his trial counsel erred by conceding the aggravating
factor that the murders were committed for pecuniary gain. Trial counsel did not
err but instead made a reasonable, strategic decision to concede that aggravating
factor.
During his penalty phase closing argument, attorney Tassone conceded that
Wade was convicted of the murders and that Wade was motivated by greed. He
argued: “There was no good reason to murder Reggie and Carol Sumner and
[Wade] only did it to get money and indeed greed is the reason that Reggie and
Carol Sumner are dead and greed is the reason that Alan Wade sits here today.”
At the evidentiary hearing, Tassone testified that he made a strategic
decision to concede the pecuniary gain aggravating factor. Attorney Tassone
explained that he felt that pecuniary gain as a motive was proven by the evidence
and that—in light of the jury’s decision to convict Wade of robbery—conceding
the factor would be a method of maintaining some credibility with the jury.
Tassone summarized: “I’m not clever enough . . . to figure out how to argue that it
wasn’t pecuniary gain on a robbery conviction.”
This Court’s precedent demonstrates that attorney Tassone’s strategic
decision was reasonable. In a similar case where the codefendants stole the
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victim’s car and wallet, this Court agreed with the postconviction court’s
conclusion that “ ‘it would have been preposterous’ for penalty-phase defense
counsel to argue that no facts in the record established pecuniary gain when the
jury found, beyond a reasonable doubt,” that the defendant was “guilty of
conspiracy to commit armed robbery, armed robbery, and murder in the first
degree.” Gamble v. State, 877 So. 2d 706, 716 (Fla. 2004).
b. HAC
Wade contends that trial counsel conceded the aggravating circumstance of
HAC when he argued: “I suggest to you that Alan Wade’s acts were evil itself, that
there was no moral justification for the acts of anyone that was in that group.”
Trial counsel’s closing argument can be reasonably interpreted as conceding HAC,
but any such concession did not prejudice Wade. The evidence established that the
victims were buried alive, and Wade offers no explanation of how trial counsel
could have coherently argued to the jury that the murders were not “conscienceless
or pitiless and unnecessarily torturous to the victim.” Diaz v. State, 860 So. 2d
960, 966 (Fla. 2003) (quoting State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973)). In light
of the jury’s guilt phase decision to convict Wade of the murders and the evidence
that the Sumners experienced torturous deaths, any inadvertent concession by trial
counsel does not undermine confidence in the applicability of the HAC
aggravating factor.
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C. INEFFECTIVE ASSISTANCE DURING VOIR DIRE
In his final claim on appeal, Wade argues that the postconviction court
should have concluded that Wade’s trial counsel performed ineffectively during
voir dire. Wade’s arguments are without merit.
1. Misstatement of Florida Law
Wade contends that trial counsel was ineffective for misleading the
prospective jurors during voir dire by creating the impression that if the
aggravating factors outweighed the mitigating factors, the jurors would have to
recommend the death penalty. Wade did not prove that he was prejudiced by trial
counsel’s allegedly improper comments.
The jurors in a capital case should not be told that if they conclude that the
aggravating factors outweigh the mitigating factors, then the law requires them to
recommend a death sentence. Such a comment is a “misstatement[] of law because
‘a jury is neither compelled nor required to recommend death where aggravating
factors outweigh mitigating factors.’ ” Franqui v. State, 804 So. 2d 1185, 1192
(Fla. 2001) (quoting Henyard v. State, 689 So. 2d 239, 249-50 (Fla. 1996)).
Regarding prospective juror Green, Wade has not demonstrated any error.
After prospective juror Green stated that she had feelings against the death penalty,
defense counsel attempted to rehabilitate her. Defense counsel asked Ms. Green
several questions, including: “I take it then that you could if the aggravating
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circumstances outweighed the mitigating circumstances apply the law and if the
case were appropriate vote death?” Defense counsel’s question did not misstate
the law. Defense counsel did not state or imply that a death vote is required where
the aggravating circumstances outweigh the mitigating circumstances but only that
in such a circumstance, the death penalty may be appropriate. See Davis v. State,
136 So. 3d 1169, 1207 (Fla. 2014) (“[T]he prosecutor correctly informed the jury
that a death sentence is legally permitted where the aggravating circumstances
outweigh the mitigating circumstances without improperly diminishing the jury’s
discretion to recommend less than the legally allowable sentence.”).
Regarding prospective juror Butler, when being interviewed by the State,
Ms. Butler gave answers suggesting that she would hold the State to a higher
burden of proof in a death penalty case and, when asked by the defense, indicated
that her support for the death penalty was at a level two out of five. In an effort to
avoid juror Butler being struck for cause on the basis that she could not vote for the
death penalty, trial counsel asked her: “[I]f [the State] presented aggravation,
factors that beyond a reasonable doubt outweighed the mitigators, then you could
apply the law and follow the law and vote death, is that right?” Defense counsel’s
question to Ms. Butler—while not expressly stating that the jurors would be
required to vote for death if the aggravating factors outweighed the mitigating
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factors—could have caused a lay person to equate “follow the law” and “vote
death.”
But even if defense counsel’s question to Ms. Butler was improper, Wade
cannot demonstrate prejudice. This Court has concluded that a misstatement
during voir dire about the weighing of aggravating and mitigating factors does not
satisfy the Strickland prejudice prong where the jury is properly instructed on the
issue by the trial court. See, e.g., Krawczuk v. State, 92 So. 3d 195, 207 (Fla.
2012) (“As noted by the postconviction court, the record indicates that the jury was
properly instructed. Accordingly, we find that Krawczuk has not demonstrated
prejudice.”); Anderson v. State, 18 So. 3d 501, 517-18 (Fla. 2009) (similar). In the
instant case, the trial court properly instructed the jury: “If one or more aggravating
circumstances are established you should consider all of the evidence tending to
establish one or more mitigating circumstances and give that evidence such weight
as you feel it should receive in reaching your conclusion as to the sentence that
should be imposed.” As a result, Wade has not demonstrated prejudice.
2. Failure to Preserve Issue for Appeal
Wade argues that the postconviction court should have concluded that trial
counsel was ineffective because trial counsel failed to properly preserve for review
the trial court’s denial of two challenges for cause made by the defense. Wade
contends that trial counsel erred by not identifying a juror whom he would have
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stricken if granted additional peremptory challenges. This claim of ineffectiveness
of counsel is insufficiently pleaded. Wade does not allege which juror trial counsel
should have identified as being objectionable.
3. Questioning of Jurors and Juror Challenges
In his final claim on appeal, Wade argues that the postconviction court
should have concluded that trial counsel was ineffective for failing to adequately
explore the feelings about the death penalty of four members of the jury—jurors
Isleib, Baesler, Smith, and Bragg—and for failing to challenge for cause or use a
peremptory challenge to remove those jurors. Wade is not entitled to relief.
Wade’s claim that “there would have been a basis for a for cause challenge
if counsel had followed up during voir dire with more specific questions is
speculative.” Green v. State, 975 So. 2d 1090, 1105 (Fla. 2008). Wade offers no
reason to believe that if the jurors were asked in more detail about the relative
burdens of proof and the weighing process, they would have given answers that
raised doubt about their fitness to serve.
Wade also fails to establish that trial counsel was ineffective for not
challenging for cause or using a peremptory strike to remove jurors Isleib, Baesler,
Smith, and Bragg. As set out in Carratelli v. State, 961 So. 2d 312, 324-25 (Fla.
2007), where a defendant “alleges that trial counsel was ineffective for failing to
raise or preserve a cause challenge, the defendant must demonstrate that a juror
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was actually biased.” “Under the actual bias standard, the defendant must
demonstrate that the juror in question was not impartial—i.e., that the juror was
biased against the defendant, and the evidence of bias must be plain on the face of
the record.” Id. at 324. Wade cited to no evidence on the face of the record that
indicates that any of the above listed jurors were actually biased against him. Each
of the four jurors stated that, in general, on a scale of one to five—five being the
most in favor of the death penalty as a potential punishment for first-degree
murder—they supported the death penalty at a level five. But despite identifying
themselves as level-fives, each juror expressed a willingness to make an
individualized sentencing recommendation.
III. CONCLUSION
For the reasons stated above, we affirm the postconviction court’s order
denying Wade’s motion for postconviction relief.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.
CANADY, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County,
Michael R. Weatherby, Judge - Case No. 162005CF010263BXXXMA
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Ann Elizabeth Finnell of Finnell, McGuinness, Nezami, & Andux, P.A.,
Jacksonville, Florida,
for Appellant
Pamela Jo Bondi, Attorney General and Carolyn Marie Snurkowski, Associate
Deputy Attorney General, Tallahassee, Florida,
for Appellee
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